Does it Matter if Abortion Is Legal?

A new book warns that even with Roe v. Wade intact, the procedure is still effectively banned in some places.

November 8, 2017

In 2013, 22-year old Beatriz Garcia found herself
in the middle of the global abortion debate, a symbol and a lightning rod for
what happens when a woman who lives in a country with a total abortion ban
faces a life-threatening pregnancy. Beatriz was from El Salvador, which has one
of the harshest and most notorious abortion bans in the world. She suffered
from lupus nephritis, an autoimmune
disease where the body’s immune system targets its own body tissues, and her
first pregnancy almost killed her. Doctors warned Beatriz of the danger of
having another baby, but when her son was eighteen months old, she found
out she was pregnant again. Making matters worse, the fetus was anencephalic,
meaning it did not have a brain. If it did not die in utero, it would die
shortly after birth. Faced with the prospect of dying and leaving an infant son
behind for a fetus with no chance of survival, Beatriz and her doctors agreed
that the safest course of action was what they called an “interruption,” a
euphemism for abortion. However, the hospital’s lawyer said that interrupting
the pregnancy would violate Salvadorian law. An international firestorm
ensued.

HER BODY, OUR LAWS: ON THE FRONT LINES OF THE ABORTION WAR, FROM EL SALVADOR TO OKLAHOMA By Michelle ObermanBeacon Press, 216 pp., $27.95

Michelle Oberman, a professor at Santa Clara
University School of Law, opens her new book Her Body, Our Laws: On the Front Lines of the Abortion War, From El
Salvador to Oklahoma, with Beatriz’s story. The case gives grounding to
this ambitious book, which looks at the effects of abortion restrictions in Latin
America and the United States. Oberman has spent her career studying the murky
ethical waters of pregnancy and motherhood. She’s done research about
pregnant women who abuse drugs and written two books about mothers who have
killed their children. Her mission with this book is not to argue whether or
not abortion should be legal, but to interrogate the impact of laws that
restrict it.

This might seem like a surprising quest for a
liberal, Jewish, pro-choice law professor from California—as Oberman repeatedly
notes—but she’d seen how “abortion’s legal status didn’t make much of a
difference” for many of the women she studied in El Salvador and rural parts
of the U.S.— women who are poor, ill, and marginalized. To them, the polarized,
zealous rhetoric around “choice” and “life” was mostly irrelevant. Just because
abortion is legal doesn’t mean it’s accessible, and just because it’s illegal
doesn’t mean it’s inaccessible. Which begs the question: Does it matter if
abortion is legal?

When a local women’s group found out about
Beatriz’s case, they secured her a team of lawyers who petitioned the
Salvadorian Supreme Court for permission to terminate the pregnancy. Local
newspapers published editorials, government agencies threw in their two cents,
and international organizations, including the UN and Amnesty International,
took notice. Everyone had an opinion. Beatriz and her son went into hiding to
avoid the TV cameras staked outside their home.

“For those who opposed the abortion law, her case
was the utmost example of the law’s absurdity, and a perfect case with which to
challenge the ban,” Oberman says. “For those who supported the ban, Beatriz’s
case tested the moral and legal integrity of their position that life begins at
conception.”

By the time the government reached a decision,
fifty-five days after her initial petition, Beatriz was almost seven-months
pregnant. The medical panel, which did not include a high-risk obstetrician,
determined that Beatriz was not quite close enough to death for an abortion to
be justified. The perverse catch was that the longer doctors waited to perform
a cesarean, the more complex and risky the procedure would be and the greater
her chance of permanent organ damage. At twenty-seven weeks, Beatriz started
having contractions and doctors delivered the baby, which died five hours
later.

Beatriz’s story exemplifies the cruelty of total abortion bans. She endured months
of profound psychological and physical trauma while the media debated her most
intimate needs and government gambled with her life—she was lucky that she even survived. What was gained by any of
this? The purpose of El Salvador’s abortion ban is to enshrine a religious
belief into law, consequences be damned. But laws that ignore consequences in
favor of making a statement represent, as Oberman puts it, “a fanatic’s
position.”

Just because
abortion is legal doesn’t mean it’s accessible, and just because it’s illegal
doesn’t mean it’s inaccessible.

One hoped-for outcome of legal abortion
bans is that they reduce the number of abortions. But no one actually thinks
that abortion bans get rid of abortion—or if they do, they are ignoring
mountains of evidence to the contrary. As Oberman points out, abortions still happen regardless
of legality, and in fact, abortion rates in countries with the most restrictive
abortion laws far exceed countries with more liberal laws. In El Salvador,
there are tens of thousands of illegal abortions every year.

If abortions are crimes, then who is the criminal
and how are they caught? Abortion pills have made these questions trickier. A
botched surgical abortion is easy to spot; Coat hangers and cassava sticks
perforate uteruses. However, a medical abortion looks a lot like a miscarriage,
and the pills (with varying degrees of efficacy and safety) are accessible on
the internet. In some countries that ban abortion, women can simply walk into a
pharmacy and buy Misoprostol, an abortifacient drug that is also used to treat ulcers. On the
other hand, while pills have made clandestine abortions safer, easier,
and more difficult to detect, they can
still have side effects. Complications from illegal abortions are the leading
cause of death for young women in Latin America.

If women are self-inducing abortions with pills,
then doctors aren’t the criminals, as most abortion bans are designed to make
them. The criminals are the women. Moreover, the police need help from doctors
to catch them. This puts doctors in a compromising position, with
doctor-patient confidentiality on one side and the law on the other. It also
asks them to distinguish between an abortion and a miscarriage, and evidence is
hard to come by, especially in the first-trimester. Between 2001 and 2011, El
Salvador investigated one hundred and twenty-nine women for abortion-related
crimes, mostly “suspicious” miscarriages. Forty-nine women were arrested, and
thirteen were convicted and sent to prison. That’s thirteen too many. Oberman discovers that
it was doctors working in Salvadoran public hospitals who turned women into the
police, while private doctors, who served wealthier women, did not report their
clients. The result is that abortion is only functionally illegal for the patients who cannot pay
for privacy.

In the second half of the book, Oberman turns her lens on Oklahoma, where abortion
is legal, but people wish it wasn’t. Since the 1973 Roe v. Wade decision that
established abortion as a constitutional right in the U.S., Oklahoma, like
other states, has dedicated fathomless amounts of time, money, and energy to
establish as many limits to that right as possible. Oberman feels like a
fish-out-of-water there, writing about the oddness of seeing Christian references in
“cliched billboards and bumper stickers” and visiting a shooting sports store
filled with an “astonishing array” of taxidermy.

“Images of fetuses became part of the landscape,
like American flags or the crimson and cream of the University of Oklahoma
Sooners,” Oberman says. “The pro-life messages were so ubiquitous that they
faded into the background. But it’s not a tranquil background.” Oberman listens
to State Representative Mike Reynolds tell her about his crusade to save
“unborn children,” and make factually inaccurate claims about women’s bodies.
When Oberman asks him about the purpose of abortion law, he responds that it’s
to send a moral message about the wrongness of abortion. The details—like
whether there should be exceptions for rape, incest, maternal
life—and how the law would be enforced, were less important to him.

After getting an earful from politicians, Oberman
visits Birth Choice, a crisis pregnancy center that operates a shelter for
pregnant women and offers mental health counseling, drug abuse treatment,
and vocational training to its residents on the condition that they carry their pregnancies to term. While the founders of Birth Choice are opposed to
abortion, they claim their mission is to support vulnerable, pregnant women,
rather than shame them. However, abortion laws aren’t the only policies that impact whether
or not a woman decides to keep a pregnancy: so do paid family leave laws, affordable medical care, educational access, living wages, and food security. And still,
there are plenty of women who want to end pregnancies simply because they don’t
want to have a baby, and no amount of maternity leave, vocational training, or
free diapers can change that. And that’s their right.

Her Body,
Our Laws emphasizes that the issue of abortion
legality is not black and white: Other factors come into play in determining
how abortions happen and who is able to get them. “Of the many things dividing
the United States, none seems more salient than the divide between pro-life and
pro-choice forces. At the heart of the dispute is the assumption that, if Roe
is reversed and abortion becomes illegal, things will change. We talk about
banning abortion as if we all understand how things will change if abortion
becomes a crime.” We don’t.

We talk about
banning abortion as if we know how things will change if abortion
becomes a crime. We don’t.

If Roe falls—which it well may—it will be up to
the states whether abortion is legal. Women in states with bans will have to
travel to access abortion care, which means that it will primarily be available
to women of wealth and privilege. Furthermore, it stands to reason that women
will be thrown in jail for abortion-related crimes, because that’s already
happening. Hundreds of women in the U.S.—people like Bei Bei Shuai, Purvi Patel, Anna Yocca, and Jennifer Whalen, to name a few—have been
charged with crimes relating to pregnancy or abortion over the past few years.

Abortion bans are about
moral truth for those who oppose abortion. For people who support legal abortion, legalization reflects the moral truth that women are people, and that
their rights aren’t sublimated just because a sperm happened to fertilize an
egg. The flip side of understanding the impact of abortion bans is to understand
the impact of legalized abortion, which is largely responsible for the social
gains American women have made over the past four decades. Women deserve
physical safety, and freedom from the fear of having their health arbitrarily imperiled by the state or being
jailed for having a miscarriage. But they also deserve more than mere survival: Women deserve education, the
opportunity to work, and legal and social recognition of their personhood. None of
this is possible without legal abortion. It’s not only the negative
consequences of abortion bans that matter; the positive impact of abortion
access matters, too. But only one side of the debate considers those
consequences worthy of discussion.